Archive for February, 2017

Alimony: The Million Dollar Divorce Question

Wednesday, February 8th, 2017

Alimony has been discussed at length in jurisprudence of the courts ever since the time it was recognized as a legitimate cause of action, far before any living attorney practiced law. Alimony often has been considered to be a punitive measure taken against a cheating partner. While fault is a factor in alimony (see Armstrong v. Armstrong – the most cited case that outlines the basic factors for the court’s consideration of alimony), fault is only one factor that the court will consider. It is important to note that even in an irreconcilable differences divorce that a chancellor may award alimony if there were issues reserved for determination by the court and not agreed to by the parties.

The findings of fault have taken on elevated importance in recent alimony cases heard in the chancery courts of Mississippi. Not long ago the court of appeals considered a case where they reduced the monthly alimony payments of a husband from $4,000 dollars to $2,500 dollars because of the wife’s alcohol abuse. Although the husband’s role in the deterioration of the marriage was significant and something that was to an extent stipulated to by both parties, the court determined that a substantial reduction of the wife’s (a homemaker) need for alimony was in order. Ultimately, the court determined that the factor of fault aligning with her alcohol abuse warranted a considerable reduction in the husband’s monthly alimony obligation. Also, it is important that any party to a divorce recognize that the presence of children is a major factor to be considered by the courts in the awarding of alimony. In another recent case, although the parties had separate estates that were roughly equal, the court made a determination that the presence of autistic children warranted an award of alimony due to the discrepancy in income. Essentially, the husband made an argument that the court erred in allowing such a sizable alimony award because it consisted of “post-emancipation child support.” However, the court rejected this argument and rightfully so.

It is also interesting to note that under certain circumstances, an unemployed husband can be required to pay alimony. For instance, in one recent court of appeals case the court upheld an award of a chancellor wherein the husband, now unemployed, had demonstrated previous earning capacities far in excess of that of his wife. One of the main reasons the court upheld this award was because of his acknowledgement of several relationships during the marriage and his dissipation of assets on trips and gifts for his girlfriend. It is crucial to understand that alimony is not intended to make the parties financially equal, and there are instances in which a denial of alimony will be affirmed by the court as well. It is important to keep in mind that earning capacity and ability to earn a sufficient living is a huge consideration for any court in an award of alimony. The chancellor in another recent and noteworthy court of appeals case determined that even though the wife had no income, she was a registered dietician and was able to renew her certification and training and thus had sufficient earning capacity. The court rejected her argument that the chancellor should have found that her husband had dissipated assets by paying $30,000 dollars to settle a separate lawsuit. The court viewed this as disposition of assets which were in fact marital.

If you need assistance in any alimony, permanent alimony, lump sum alimony, or any other issue dealing with modification of alimony, please feel free to call us. We’re best equipped to assist you and point you in the right direction as far as your legal rights are concerned. Law Office of Matthew Poole. 601.573.7429.

What Custody Rights Do Fathers Really Have?

Thursday, February 2nd, 2017

It is extremely common for our office to receive calls, from either a mother or a father, seeking a determination as to what custody/visitation rights they have to a minor child in scenarios wherein there was never a valid marriage. There is a long-held misconception that because a father is on a birth certificate, he automatically has at least some custody rights to his minor child or children. This misconception could not be further from the reality of the rights that, in the eyes of the court, are afforded to a father in situations where he has never been married to the child’s mother and is seeking some type of physical custody or significant visitation rights. Although it is true that the Mississippi Department of Human Services often adjudicates child support on behalf of a parent (usually the mother), it is legally impossible for the Department to address issues of what custody rights a father may have. This of course can work to the advantage – or disadvantage – of both the mother and the father.

The Department of Human Services is able, under certain circumstances, to adjudicate issues of visitation for a father. However, the Department has limited power to make any determination, if at all, as to what custody rights a father may have if he is seeking anything other than typical, every-other-weekend visitation of his minor child or children. The Department of Human Services does not have the legal authority to adjudicate anything other than child support and, in certain instances, to assist a father in having some form of access to a minor child or children. However, this access is very limited and would not bear upon any custodial rights, aside from potentially having the Department assist a father in having, as previously stated, basic access and visitation with his minor child or children. There is a program at the Department of Human Services that will assist a father in obtaining some access, but it is important to keep in mind that simply because a birth certificate exists, this does not give a father any rights other than the potential to see his child, so long as he is paying normal, statutory child support.

It is the best practice for any mother or father who is in any disagreement as to what rights either one has to access and custody of a child (whether it’s physical or legal custody), and it is important for clients and potential clients to realize, that only a chancery court can adjudicate permanent custody rights of a child. Oftentimes, our office will have a mother call and state that the father has joint custody simply because his name is on the birth certificate. In most cases, this works against the mother because the chancery court has a requirement that she be diligent enough to understand that the Department of Human Services cannot award any custody. If a mother has allowed significant or joint custody with a minor child, then this likely will work to her disadvantage in the case that the father decides to go to chancery court and seek anything other than standard visitation. While it is well understood that many fathers attempt to avoid child support by claiming their desire for joint custody, it is important to note that the more rights that are given in a casual format (like a verbal agreement, for instance) between a father and a mother, the more likely a chance the father has of prevailing against the mother if he does indeed seek joint physical or primary physical custody of the minor child or children.

If you need advice on how to handle your custody situation and need an attorney with experience who handles exclusively domestic matters and who can guide you in a similar scenario, please give us a call at 601.573.7429. Law Office of Matthew Poole.